My friend Russell Arben Fox has come a long way in the last few years (see here to chart the progress), and I am delighted he’s now joining me in celebrating the fantastic news from the UK yesterday. While I have some sympathy for the democratic theory that motivates his argument in this post, I think the theory he expresses here has a lot of problems. This paragraph, in particular, isn’t at all clear about the proper role of judicial review in Foxland:

If I now believe that same-sex marriage should be recognized as a legally defensible and positive civic good, which should I care about those whose opinions would be found constitutionally lacking by a decision which I support? Would I have cared about the consequences of Brown v. Board of Education for racists, for example? Well, my answer to the latter is “no”–but my answer to the former is that I just to don’t believe that opponents of same-sex marriage are operating from the same kind of irrational animus which many of those who were scandalized by the end of segregation were. It’s quite easy to position oneself on the probably winning (and, again, I think right) side of history here, and say that the passage of time will prove that same-sex marriage opponents are ultimately cut from the same bigoted cloth, and I can’t deny that might, decades hence, turn out to be the case. But for now, as one who prefers the messy imbalances of democracy to the supposedly clear (but for all that usually arbitrary) impositions of the law, and for whom the past three years have mostly just provided confirmation of my many doubts about trusting in the judicial branch), as well as one who not too long ago was persuaded by a certain argument against same-sex marriages, I just can’t see in the supporters of Proposition 8 and the Defense of Marriage Act and the opponents of what the House of Commons just voted for as somehow so obviously out of line with our country’s evolving political ideas so as to deserve a judicial squashing.

There’s a mixed message about here about the appropriate standard for judicial intervention in rights protection. Russell suggests that Brown is acceptable while Varnum and its cousins are not (or at least less so) because of the degree of ‘irrational animus’ present in the opponents of desegregation compared to the opponents of marriage equality. (As an aside, I note that this changes the proper task for judges in a democracy–in addition to interpreting the proper bounds of equal rights, you charge them with the task of interpreting the degree of irrational animus amongst the opponents of a particular rights claim; if judges are not capable of addressing the former with sufficiently apolitical dispassion, what would motivate the belief they are capable of the latter task, which seems every bit as difficult and fraught with opportunities to import one’s politics?) But at the end of the paragraph, the standard for judicial intervention is how “out of line” rights opponents are with “our country’s evolving political ideas.” I can’t recall if Russell has ever directly addressed Loving (he mentions it in passing later in the post in a way that would seem to suggest he’s a fan), and I’d be curious to see him do so. The standard he suggests at the start of this paragraph would seem to align him with the majority, as he’s established that racist public policies reveal and irrational animus. But by his second standard, Loving would seem to be highly illegitimate; it came at a much earlier moment (but clearly still midstream in that particular democratic deliberation) in the evolution of views on interracial marriage in this country than we are at presently with marriage equality for same sex couples.

Readers will not be surprised to learn that I am not entirely persuaded by Russell’s view that the irrational animus isn’t a significant part of the opposition to marriage equality today. I’ll concede here that holding the view that a certain version of gender complementarianism provides the best foundation for available for marriage is not, taken alone, sufficient evidence of irrational animus against gays and lesbians. However, the view that gender complementarianism is the ideal for marriage and therefore we should use the coercive power of the state to prevent some (same sex) marriages that do not conform to this ideal, but tolerate many other (opposite sex, but based on feminist/egalitarian principles) marriages that openly flaunt and reject this vision) is clearly evidence of an irrational animus; it’s singling out a tiny minority—one that’s already legally and socially vulnerable, in large part because a substantial majority of the very same people that oppose their marriage rights also oppose civil unions and inclusion in anti-discrimination statutes—for a highly selective effort to legally enforce a fundamentally, transparently unenforceable ideal of marriage. (Perhaps it’s sufficient to pass the Court’s rational basis test, but that’s the sort of reasoning Russell wants to move away from, with good reason). Furthermore, Russell’s argument that many states have been willing to enact civil union statutes that approximate marriage in legal form (as evidence against irrational animus among SSM’s opponents), applies to a small minority of same sex marriage’s legal opponents. In Washington State in 2009, 47% of the population voted to rescind the state’s civil union law; three years later 46% voted to rescind marriage rights for same sex couples. The pattern—where the votes and financial support for the campaign came from—were virtually identical. That a handful of moderate legislators have made this distinction does not, in fact, suggest that opponents of same sex marriage as a group do; voting patterns on civil unions and SSM reveal that the majority of them clearly do not.

Finally, Russell makes an argument with which I have some sympathy: he is concerned with the reduction of democratic debates to “judicial claims and counter-claims” and the distortion of our public discourse constitutes a democratic cost. I don’t exactly disagree, although this is probably a much more minor concern for me than it is for him. But: every form of institutional social chance carries democratic costs. Consider, in comparison, the costs of achieving SSM by plebiscite, which (arguably) surpasses legislatures as a democratic way of addressing this issue, particularly given the various countermajoritarian features of contemporary legislatures. What does *this* do to our public discourse? Opponents of SSM figured out a formula for winning elections in an environment in which a majority is at least sympathetic to equal rights for gays and lesbians (whether it’s marriage rights, civil unions or inclusion in anti-discrimination statutes): to suggest and imply that equality and recognition for gays and lesbians inevitably constitutes a significant threat to the well-being of children. This is a breathtakingly ugly bit of demagoguery, and it’s been cheerfully repeated and funded by the major organizations that oppose SSM (including Russell’s church), and has been depressingly effective (until, blessedly, 2012) in persuading those on the fence to side against rights for gay and lesbian couples. (That SSM opponents are so willing to pursue this line of reasoning, and are so susceptible to it is also, I think, evidence that irrational animus is playing a larger role than Russell admits). But this ugliness doesn’t mean I oppose efforts to legalize SSM by plebiscite! Any form of social change has costs, and the nature of the costs of judicial, legislative, and plebiscitary varies. But if we’re going to talk about the costs of one of these methods, we should do so comparatively, not in isolation.

Ultimately, I think Russell is conflating two moments of democratic theory. At the first moment, the question of proper institutional design for a democratic polity, I have a fair amount of sympathy for the Waldronian case against constitutional judicial review, although I would probably still reject it in some cases. I certainly agree with Russell that the UK offers a better model for democratic institutional structures than the US does, although largely for reasons other than the role of judicial review. But Russell consistently moves too easily from democratic theory at the moment of institutional design to democratic theory after the question of institutional design is (provisionally) settled. This is evident in this old post on school funding, where Russell argues (correctly, in my view) that disputes over the funding of public schools probably shouldn’t be settled by lawsuits as a general practice, and suggests (incorrectly) that citizens who use this avenue to protect public school funding in their community are in some sense failing to behave as proper democratic citizens, even though this is precisely the mechanism the State of Kansas has set up for them to demand greater funding for public schools in their community. My view is this: activists and citizens should feel free to be pragmatic and strategic in choosing which institutional route to social change to pursue, even if that form is less than ideal. (My reservations about plebiscitary democracy are, I think, at least as strong as Russell’s about judicial review, but as long as we’re stuck with it, as we surely are in many states, I don’t begrudge my allies or my opponents effort to use it). Democratic citizens are always going to operate in an environment of less than ideal institutional arrangements, and there’s no sense in pretending otherwise. But the case for the legitimacy of judicial strategies is particularly strong in the US, I think, since our political system (including our legislatures) is so effectively larded up with countermajoritarian choke points that frequently empower powerful minorities to hold up social change with substantial support in the realm of public opinion.

All this reveals, I suppose, that at the level of democratic theory I’m more of an agonist and less of a deliberativist than Russell. I suspect that, given my (less charitable) read on the quality of arguments against same sex marriage (and civil unions, and anti-discrimination statutes), combined with the observation that the most efficient path to change minds on this issue, and (I suspect) the main driver of social change on this issue, isn’t particularly good arguments about the scope of rights or the nature of marriage or anything else, but the condition of actually having gay and lesbian people in one’s life, as family members, friends, or community leaders. The best way to continue this positive social transformation, I suspect, is not to persuade the wary via democratic deliberation, but to achieve equal rights by whatever mechanism is most efficient, and live publicly and openly as equal citizens, and watch the irrational fears melt away. How we live is a part of democracy as much as what we say. Acquiring legal rights, regardless of the acquisition mechanism, facilitates gays and lesbians’ capacity to live as equal citizens, which, in the end, is likely to be far more persuasive than anything they could say.

Comments (36)

In states where there was legislative action for marriage equality, the cry was that this belonged in the courts or on the ballots. Where it was on the ballots, the cry was that it belonged in the legislature or the courts. Where the courts acted…

And as you note, the whole thing was and is opposed by vicious and quite deliberate lying.

It’s interesting if pathetic to contrast the arguments against marriage equality coming from the same people who argue for a super broad and inclusive 2nd Amendment reading.

The US, thank goodness, is not a mere howling democracy but a constitutional republic. My rights are not simply a function of what the democratic majority are willing to recognize–they are guaranteed by the constitution, and enforceable through the courts.

Perhaps. But since we are talking about SSM, I suspect the constitutional case for it isn’t nearly as overwhelming as LGM thinks it is. Many liberals mocked Paul Clement’s argument about marriage and unplanned and planned children. But was his argument really so silly? The point is that heterosexuals will have children regardless of what the state does. Homosexuals, by contrast, won’t have children at all. They will only get access to children if the law allows them through adoption, insemination or surrogacy. Marriage is socially valuable because the state has a rational interest in insuring that parents look after their children, and marriage helps them do that. By contrast, homosexual families exist only as a matter of law, and therefore it can’t be unconstitutional discrimination to deny them marriage. (It’s not even clear, in my own personal view, why surrogacy contracts should even be enforceable.) Yes, not all heterosexual marriages have children. But the proportion of marriages that have an ironclad absolute objection to having children is far smaller than the proportion of journalists who are hacks, timeservers, unscrupulous liars or empty conformists who still benefit from the liberal idea that any intellectual contribution can improve intellectual debate. One might argue that the proportion of married couples who will have no relationship with children is similar to the proportion of homosexuals who would actually ever get married. LGM no doubt does not like this logic, but why shouldn’t it convince five conservative Catholics. Is there a better argument than that Anthony Kennedy knows more gay people than he knows poor criminal defendants, trade unionists, or poor women who would like an abortion in their fifth month of pregnancy?

To get back to DJW’s point, I suspect that it’s fairly easy to distinguish Brown and Loving from any SSM case. Bans on miscegenation arose under slavery, and clearly existed to enforce it. Aside from the fact that most segregationists conceded that children had some right to education, the idea that communities should be hermetically sealed from each other is not really compatible with a democratic community. By contrast, why shouldn’t the state treat heteosexual intercourse differently from homosexual intercourse? Heterosexual intercourse that produces children is vital for the continuation of society and the Republic. Homosexual intercourse, as well as heterosexual intercourse that doesn’t produce children, is at best something protected by a right to privacy, like playing tiddlywinks, watching Sylvester Stallone or Robert Bresson movies on DVD or making really interesting salads.

Yes, yes it was a silly argument. More to the point, it is not an argument that anyone anywhere is ever actually using in matters of family law and the like. It has no connection to what the US’s various levels of government actually do with regard to children planned and otherwise, nor is anyone suggesting policies justified on its basis…except when it comes to beating on same-sex couples. It’s as relevant to actual governance as the “gold fringe means admirality court” nonsense and deserves just as much respect.

Show me a movement to keep sterile people from marrying, and I’ll think this child-bearing thing is anything other than homophobic claptrap. Where are the post-menopausal widows being told they shouldn’t re-marry and being denied a license if they try?

Show me a movement to keep sterile people from marrying, and I’ll think this child-bearing thing is anything other than homophobic claptrap. Where are the post-menopausal widows being told they shouldn’t re-marry and being denied a license if they try?

And even if there’s a case where it’s potentially not a silly argument, it certainly is in the case of Prop 8, which did nothing except prohibit same sex partnerships from being called ‘marriage’, or DOMA section 3, which is just about which marriages the federal government chooses to recognize.

Existing evidence strongly suggest that “homosexuals” will have and raise children regardless of what the state does, too.

homosexual families exist only as a matter of law

Again, nonsense. They exist as a matter of sociological fact, just like all the other families.

I’m not interested in arguing the constitutional law, though. This is exactly the kind of legalistic argument Russell has such distaste for, and for good reason. My point was that if it works (whatever the winning argument) we should be just as happy–and the result is just as legitimate–as achieving the same goal via plebiscite or legislative means.

Or divorce and remarriage, for that matter. I know large numbers of gay men (including my own partner of 21 years) who are biological fathers from straight relationships at an earlier point in their lives.

But this blog does argue that SSM is a constitutional right. It will be very irritated if the Supreme Court decides otherwise, or with the dissents should SSM be successful. How can you base a constitutional right on the ground that jurisdictions allow homosexuals to adapt children? Heterosexual intercourse precedes adoption laws, regulations of artificial insemination, and surrogacy contracts. Moreover, to argue that SSM should be supported because its grants more rights that civil unions or other forms, and then to argue that these rights have nothing to do with raising children is disingenuous. How does one get from the idea that the right to privacy means homosexual acts can’t be prosecuted to the idea that the state can make no distinctions between heterosexual and homosexual acts?

No, it holds that marriage is a right, and that the state needs a damned good reason to restrict the rights of individuals to marry, and that none of the arguments made by anti-gay people (and yes, the folks against marriage equality are anti-gay) hold any water.

I agree, SSM should be a constitutional right, but my argument is simple and extremely unsophisticated: 1) Marriage is a fundamental right; 2) Equal protection before the law. Adoption, surrogacy, and all the other issues you’re going on about ought to be irrelevant. I’m not saying it’s particularly likely the kind of reasoning I’m engaging in will prevail, and I’m far more interested in outcomes than the particular legal arguments used to get there in any case. At any rate, this post isn’t about the particulars of the legal arguments that might be used to reach a decision here, it was about the democratic legitimacy of rights acquisition through the courts. I have no interest in playing the game you’re playing.

Thanks for taking the time to write this thorough push-back against my reflections, David. Your conclusion that our disagreements can be effectively summed up as agonism vs. deliberativism almost certainly has a lot of truth to it. As regards some of your more substantive responses:

First, we’re going to have to continue to agree to disagree about the irrational animus. You know that I don’t deny there’s plenty of homophobia out there, but I simply don’t see how the refusal to legally recognize as a marriage a relationship which is increasingly tolerated, in the same way many other relationships (some of which are legally recognized marriages, but many of which are not) are also tolerated, necessarily involves some special hatred of gays and lesbians. It’s wrong, I’ve decided, but it’s not by definition hateful.

Second, regarding Loving, I need to repent of my final line in the quoted paragraph about a position being “out of line” with the “evolving” position of the society in question. I just wanted to get across the idea that the process of democratic deliberation regarding same-sex marriage is at a highly fluid point right now; has been for 15 years, at least, and probably will continue to be (I think rightly should continue to be) for years to come. As such, it’s not as though our polity, I think, is currently at a point where the harms (which I think exist, just not quite on a constitutionally valid level!) of exclusively recognizing heterosexual marriages are part and parcel of an entrenched, debilitating, hate-filled social life, which of course is what Plessy v. Ferguson had given us.

Third, your claim that I am “conflating two moments of democratic theory” is probably on point, and really requires that I think more carefully about where my commentary on this and other issues is making use of ideal theory and where it isn’t. I’ll finish with sharing the e-mail I sent you, in response your question of whether I see my post as speaking primary to judges, or primarily to same-sex marriage proponents:

“Rest assured, I’m talking primarily to judges. I mean, honestly, given the options available, why SHOULDN’T gay rights activists make use of existing law to push their cause? Because it violates my personal preferences for participatory democracy? I’d be delighted if I found out that any such are actually so persuaded, but we’re probably too far down this road already to suddenly expect a change of tactics on the basis on an ideal argument.”

First, we’re going to have to continue to agree to disagree about the irrational animus. You know that I don’t deny there’s plenty of homophobia out there, but I simply don’t see how the refusal to legally recognize as a marriage a relationship which is increasingly tolerated, in the same way many other relationships (some of which are legally recognized marriages, but many of which are not) are also tolerated, necessarily involves some special hatred of gays and lesbians.

I suppose I should grant that I see this as strong circumstantial evidence of animus (which becomes overwhelming in combination with relevant other facts, including and especially the substantial overlap with opposition to civil unions and anti-discrimination protection, and susceptibility to political messaging that implies that implies mere acknowledgement of gay families in the public sphere is a serious threat to children) rather than definitive evidence. But if it’s not animus, there should be some better explanation for the disparate response to different marriages that fall short of the ideal.

But if it’s not animus, there should be some better explanation for the disparate response to different marriages that fall short of the ideal.

There damn well should be…but there isn’t.

Britney Spears married her childhood friend while on a bender in Vegas, and then got it annulled 55 hours later. But for those 55 hours, they were legally man and wife, and recognized as such in every state in the union.

The reaction from the defenders of traditional marriage to this event was complete silence.

And yet I’m supposed to believe that the anti-SSM movement is about something more than “some special hatred of gays and lesbians”? Please — don’t insult my intelligence.

I suspect you’re confusing cause and effect when you say that Plessy “gave” the US an “entrenched, debilitating, hate-filled social life.” I’d argue that the apartheid-like laws and judicial decisions creating de jure racist separation and domination grew out of that “hate-filled social life,” and not the other way around. There are very few times that the Court leads public opinion (Brown and Loving being inspiring counter-examples, AFAIK).

It’s probably fair to say that Plessy made a contribution to the (re)entrenchment of white supremacy that occured in the decades following the abandonment of reconstruction, but it’s also almost certainly true that it wasn’t in any sense a necessary event for that re-entrenchment to occur. But yes, “hate filled social life” was almost certainly just as present in the 1870’s as it was in the 1890’s, with the difference being that black people had more power in the 1870’s.

But yes, “hate filled social life” was almost certainly just as present in the 1870′s as it was in the 1890′s, with the difference being that black people had more power in the 1870′s.

But that’s really the crux of the argument, isn’t it, so far as we want to try to apply my ideas about when judicial intervention is and isn’t warranted to the context of race in America. Before Plessy v. Ferguson, the tools available to free blacks and their sympathizers to push back democratically was much greater than it was afterwards. Hence, on that reading, Brown v. Board of Education was necessary not just (and perhaps not even primarily) for 14th Amendment reasons, but because previous decisions had structurally cleared a space where racial superiority and inferiority could be incubated.

First, I give huge props (seriously) for your willingness to talk about your position. But let me ask, regarding these “many other relationships (some of which are legally recognized marriages, but many of which are not)”: what relationships are you thinking of that are essentially similar to marriage, but the participants could not have legally recognized if they wished?

And, of these, what such relationships exist where significant numbers of the participants express a strong desire to be legally married?

what relationships are you thinking of that are essentially similar to marriage, but the participants could not have legally recognized if they wished? And, of these, what such relationships exist where significant numbers of the participants express a strong desire to be legally married?

In response to your first question, primarily polygamous and polyandrous relationships, as well as many other types of co-habitation, which have come, over the past 30 years, to be essentially tolerated, and in many cases to have widespread legal and economic protections. Your second question is a more difficult one–because, of course, part of the whole point of the toleration and public acceptance of non-married living arrangements is that large numbers of these folks don’t want to get married, because they don’t believe in marriage, or want some sort of open relationship, etc. All of which, when we turn away from the tiny, tiny portion of the population that is into one or another type of polygamous swinging or whatever, and look at the 1 to 5% of the population which is gay or lesbian, throws a wrench into my argument–because I’m essentially assuming that we don’t necessarily have something which amounts to a constitutional-harm-which-demands-judicial-resolution here, because the alternatives and the support for such is increasingly available…which, of course, it wasn’t 20 or 30 years ago. This is the way I put it in another e-mail to David:

“I suppose that means, by this argument, that 20 years ago I WOULD have supported a judicial resolution to a debate over same-sex marriage, because there was so little recognition and respect given to gay and lesbian partners anywhere else in our tax code or corporate policies, etc., at that time. I’ll have to think about that. But for now, in a world where civil protections of the rights and the standard of respect for homosexual individuals is increasingly well-established, I think the marriage laws should remain in the political, rather than the juridical realm, because I just don’t think that these arguments (excepting the miserable brief submitted by the Westboro Baptist Church!) are mostly about animus—I think they’re about conflicting ideas, and those are always, I think, better settled democratically.”

I just wanted to get across the idea that the process of democratic deliberation regarding same-sex marriage is at a highly fluid point right now; has been for 15 years, at least, and probably will continue to be (I think rightly should continue to be) for years to come. As such, it’s not as though our polity, I think, is currently at a point where the harms (which I think exist, just not quite on a constitutionally valid level!) of exclusively recognizing heterosexual marriages are part and parcel of an entrenched, debilitating, hate-filled social life, which of course is what Plessy v. Ferguson had given us.

Because 15 years is the wrong time frame. The first gay rights organization in the United State was formed in the 1920s. It was dissolved within a couple months because its members were arrested.

Check out Executive order 10450 and that ban on employment of “sexual deviates” in the federal government, and how the McCarthy era hounded more people out of government employ for homosexuality than for communism. Was this all the *same* as Jim Crow segregation? No. Was there a comprehensive system of anti-gay discrimination and oppression, of which the focus on denying recognition of our relationships can be seen as, in some ways, analogous to the ban on interracial marriages? Yes, anti-miscegination statutes were intended to maintain white supremacy, just as DOMA and all the mini-DOMAs are about maintaining heterosexual supremacy.

“Yes, anti-miscegination statutes were intended to maintain white supremacy, just as DOMA and all the mini-DOMAs are about maintaining heterosexual supremacy.” I’m not sure the analogy works. For a start, I don’t think there’s ever been a period where interracial marriage was illegal through the entire United States. Secondly, interracial marriage is quite common in societies that have not been marred by racial slavery. By contrast, homosexuality has been legal, tolearted and admired in many societies, but SSM is much more rare.

I’m going to have to agree with Partisan here, at least until I read some more history which may change my mind. “Racial supremacy” is an obviously plausible reading of the motivations behind many laws and norms in the 20th century, because there was a couple of centuries of explicit racial structuring in our laws which preceded it. “Heterosexual supremacy” is a harder motivation of argue for, I think.

Personally, I’ll go with “religious beliefs regarding sexual behavior”, marriage of course being a regulation of the sexual behavior of women as a means of avoding legal disputes regarding inheritance. I submit that those who claim the opposition to same-sex martiage is not so motivated must show otherwise with more substance than assertions about what could in theory motivate a non-specific opponent of such for the purpose of argument. This of course stands opposed to all the actual oppenets of same-sex marriage, all firmly rooted in various religious schema as they are.

“Heterosexual supremacy” is a harder motivation of argue for, I think.

Most of the time, heterosexual supremacy didn’t need to be a conscious motivation, because it was so thoroughly baked into the cake of the worldview of elites. But read the depressingly tragic closing chapter of George Chauncey’s Gay New York, “The Exclusion of Homosexuality from the Public Spheres in the 1930’s,” which describes the end of a 50 year period of limited tenuous openness of gay lives in New York City in the 1930’s, and tell me it’s not describing the active, intentional construction of a cultural and political system of heterosexual supremacy.

“I certainly agree with Russell that the UK offers a better model for democratic institutional structures than the US does, although largely for reasons other than the role of judicial review.”

In _Theory of Social Revolutions_ by Brooks Adams (short, available at Gutenberg) he, writing in the US, makes a strong case for the UK model of judicial review, where Parliament can override the judiciary provided it admits that it’s doing so.

I don’t know how it would work in a federal system with state governments, though.

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